State v. Fite

• Decision Date: 09 October 1916
• Parties: STATE, Respondent, v. MARCUS S. FITE, Appellant
• Court: Idaho Supreme Court

159 P. 1183

29 Idaho 463

STATE, Respondent, v. MARCUS S. FITE, Appellant

Supreme Court of Idaho

October 9, 1916

STATUTORY CONSTRUCTION-PRACTICE OF MEDICINE AND SURGERY-CHIROPRACTICS.

1. Constitutional provisions and statutory enactments should be read and construed in the light of conditions of affairs and circumstances existing at the time of their adoption.

2. One following the vocation of a chiropractor, who charges and receives compensation for his services as such, is not thereby engaged in the practice of medicine and surgery as defined in sec. 1353, Rev. Codes, wherein it is provided "Any person shall be regarded as practicing medicine and surgery, or either, who shall advertise in any manner, or hold himself or herself out to the public, as a physician and surgeon, or either, in this state, or who shall investigate or diagnosticate, or offer to investigate or diagnosticate any physical or mental ailment of any person with a view of relieving the same as is commonly done by physicians and surgeons, or suggest, recommend, prescribe or direct, for the use of any person, sick, injured or deformed any drug, medicine, means or appliance for the intended relief, palliation or cure of the same, with the intent of receiving therefor, either directly or indirectly, any fee gift or compensation whatsoever."

[As to legal meaning of "profession" or "professional," see note in Ann.Cas. 1913E, 242]

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Appellant was convicted of practicing medicine within this state without having obtained a license so to do. Judgment reversed.

Judgment of the trial court reversed, with instructions.

J. F. Ailshie and Fred E. Butler, for Appellant.

In construing a statute the court should take into consideration the reason of the law; that is, the object and purpose of the same, and the object and contemplation of the legislative body in enacting the same, and the time and conditions under which it was passed. (Wood v. Independent School Dist., 21 Idaho 734, 124 P. 780; Oneida Co. v. Evans, 25 Idaho 460, 138 P. 337; Oregon S. L. R. R. Co. v. Minidoka, 28 Idaho 214, 153 P. 425; Colborn v. Wilson, 24 Idaho 94, 132 P. 579.)

The statute reads, "any drug, medicine, means or appliance." Applying the doctrine ejusdem generis, the words "means or appliances," being general terms, are limited by the preceding words, "drugs and medicine," and refer back to the subject "practice of . . . . medicine and surgery," so that they belong to the same class or genus. (State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L. R. A., N. S., 330; State ex rel. Spriggs v. Robinson, 153 Mo. 271, 161 S.W. 1169; San Antonio Independent School Dist. v. State (Tex.), 173 S.W. 525.)

Where a statute expressly forbids certain things, there is an implication raised that it was the legislative intent to exclude from that prohibition every other thing. (Scott v. Ford, 52 Ore. 288, 97 P. 99; 19 Cyc. 23; 36 Cyc. 1122, n. 48.)

That this statute, sec. 1353, was only intended to cover "medicine and surgery" is shown by the frequent recurrence of the words "or either" following the mentioning of these two professions. (People v. Chong, 28 Cal.App. 121, 151 P. 553.)

It cannot be contended that chiropracty falls within the term "drugs or medicines"; the prosecution must be based upon the words "means or appliances." (State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L. R. A., N. S., 328; State v. Liffring, 61 Ohio St. 39, 76 Am. St. 358, 55 N.E. 168, 46 L. R. A. 334; Hayden v. State, 81 Miss. 291, 95 Am. St. 471, 33 So. 653; State v. Biggs, 133 N.C. 729, 98 Am. St. 731, 46 S.E. 401; Martin v. Baldy, 249 Pa. 253, 94 A. 1091.)

Many courts have held that massage treatments of various kinds and character have not fallen within the purview of general medical statutes. (State v. Lawson (Del.), 65 A. 593; Reg. v. Valleau, 3 Can. Crim. Cas. 435; People v. Gordon, 194 Ill. 560, 88 Am. St. 165, 62 N.E. 858; Parks v. State, 159 Ind. 211, 64 N.E. 862, 59 L. R. A. 190; Witty v. State, 173 Ind. 404, 90 N.E. 627, 25 L. R. A., N. S., 1297; Milling v. State (Tex.), 150 S.W. 434.)

J. H. Peterson, Atty. Genl., D. A. Dunning and Herbert Wing, Assts., Henry S. Gray and Miles S. Johnson, for Respondent.

The practice of chiropracty appears to have originated in the state of Iowa, and hence it is pertinent to inquire as to the position taken by the highest court in that state relative to the question involved in the case at bar. (State v. Corwin, 151 Iowa 420, 131 N.W. 659; State v. Zechman, 157 Iowa 158, 138 N.W. 387; Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893; Locke v. Ionia Circuit Judge, 184 Mich. 535, 151 N.W. 623; State v. Siler, 169 N.C. 314, 84 S.E. 1015; People v. Ellis, 162 A.D. 288, 147 N.Y.S. 681; Board of Med. Ex. v. Freenor (Utah), 154 P. 942; People v. Ratledge, 172 Cal. 401, 156 P. 455; People v. Vermillion, 30 Cal.App. 417, 158 P. 504; State v. Griener, 63 Wash. 46, 114 P. 898; State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L. R. A., N. S., 179; Swartz v. Siveny, 35 R. I. 1, 85 A. 33; Commonwealth v. Jewell, 199 Mass. 558, 85 N.E. 858.)

"As new schools of practice come into favor their followers must possess the requirements for the practice of medicine or surgery or prevail upon the legislature to make separate provisions for them as it has done for the osteopath." (State v. Johnson, 84 Kan. 411, 114 P. 390, 41 L. R. A., N. S., 539.)

The police power of the state extends to the point of empowering the legislature to protect the individual from his own ignorance and from those who desire to prey thereon. (State v. Davis, 194 Mo. 485, 92 S.W. 484, 5 Ann. Cas. 1000, 4 L. R. A., N. S., 1023.)

A chiropractor comes within the provisions of sec. 1353. (Swartz v. Siveny, supra; State v. Wilhite, 132 Iowa 226, 11 Ann. Cas. 180, 109 N.W. 730.)

Even applying the rule of ejusdem generis, as contended for by the defendant, our statute is broad enough to include the chiropractor within its provisions, although it was enacted at a time prior to the establishment of schools of chiropracty. (State v. Corwin, 151 Iowa 420, 131 N.W. 659.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an appeal from a judgment pronounced against the appellant upon his conviction of having practiced medicine within this state without having obtained a license so to do.

The practice of medicine in Idaho is regulated by chap. 17, title 8, of the Political Code (secs. 1341 to 1356, inclusive). Sec. 1350 provides that any person practicing medicine and surgery within this state without having obtained the license required, or contrary to the provisions of that chapter, shall be guilty of a misdemeanor, and fixes the penalty therefor. Sec. 1353, in so far as it is applicable to this case, is as follows: "Any person shall be regarded as practicing medicine and surgery, or either, who shall advertise in any manner, or hold himself or herself out to the public, as a physician and surgeon, or either, in this state, or who shall investigate or diagnosticate, or offer to investigate or diagnosticate, any physical or mental ailment of any person with a view of relieving the same as is commonly done by physicians and surgeons, or suggest, recommend, prescribe or direct, for the use of any person, sick, injured or deformed, any drug, medicine, means or appliance for the intended relief, palliation or cure of the same, with the intent of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever: Provided, however, this chapter shall not apply to dentists and registered pharmacists or midwives in the legitimate practice of their respective professions, nor to services rendered in cases of emergency, where no fee is charged." The proper interpretation of that section is our chief concern in this case.

The record discloses that appellant, who is a chiropractor, had no license to practice medicine and surgery; that he administered chiropractic treatments to certain persons and charged and received compensation therefor; that these treatments consisted in the manipulation of the region of the patient's spinal column with the hands of the practitioner and that no instruments were used nor were any drugs or medicine prescribed or given. The evidence does not tend to show that appellant held himself out to the public as a physician and surgeon, or either, or that he investigated or diagnosticated, or offered to investigate or diagnosticate, any physical or mental ailment of any person with a view to relieving the same, as is commonly done by physicians and surgeons, nor did he suggest, recommend, prescribe or direct, for the use of any person sick, injured or deformed, any drug, medicine, means or appliance for the intended relief, palliation or cure of the same, unless a chiropractic treatment, as above described, can be construed to be a "means" or "appliance" in the sense in which these words were employed by the legislature in sec. 1353, supra.

The courts of last resort of a number of states have passed upon statutes intended to regulate the practice of medicine and surgery. Some of them have held that the giving of treatments without the employment of instruments, appliances or agencies such as are commonly used by physicians and surgeons, and without the use of drugs or medicines, is not violative of these statutes. Among the cases so holding are State v. Liffring, 61 Ohio St. 39, 76 Am. St. 358, 55 N.E. 168, 46 L. R. A. 334; Hayden v. State, 81 Miss. 291, 95 Am. St. 471, 33 So. 653; State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L. R. A., N. S., 328; State v. Herring, 70 N.J.L. 34, 56 A. 670, 1 Ann. Cas. 51; Smith...